The missing term in the will

Who got the land?

When Joseph Housoy of Outagamie County, Wisconsin, executed his will on the 5th day of January 1891, there was something fairly important that he left out.

HousoyOh, it included a lot of what you might expect — the fact that he was a resident of the town of Deer Creek, the usual boilerplate about being of sound mind and memory, the fact that the document was signed, sealed, published and declared to be his will with the usual number of required witnesses and so on.

And it had the nice genealogical details like the names of his six children, including the married names of his daughters, and the name of his wife.

So what did he leave out?

The short document set out six specific directions:

1st. It is my will that all my funeral expenses be paid out of my property (Real Estate).
2nd. I give and bequeath to my son Jake ($100.00) One hundred dollars.
3rd. I give and bequeath to my daughter Addie Lange ($5.00) Five Dollars.
4th. I give and bequeath to my daughter Josephine Roden ($5.00) Five Dollars.
5th. I give and bequeath to my daughter Louise Lareso ($5.00) Five Dollars.
6th. I give, devise and bequeath the balance of my property both real and personal after my death and the death of my wife Mary to my two Sons John and Henry to be divided equally amongst them both, the Real estate being the NE 1/4 of the NW 1/4 Sec. 33. Township 24. Range 15. East. Deer Creek Wis.1

Okay. Now what do you think? What’s missing? And here The Legal Genealogist means besides the failure to name an executor. What else do we not know based on what Joseph said in his will?

See it? Good.

If not, let me ask you a question: exactly what happened to Joseph’s land after his death … and before the death of his wife Mary?

Oy! The will doesn’t say, does it?

We know it goes to John and Henry in equal shares after Mary dies. But what happens to it in the interim? And how do we know?

Yet another case where the answer depends on the law.

The fact is, both before and after Joseph’s death, Wisconsin law was very clear about situations like this one. As of 1889, the law provided that:

When the owner of any homestead shall die, not having lawfully devised the same, such homestead shall descend, free of all judgments and claims against such deceased owner or his estate except mortgages lawfully executed thereon and laborers’ and mechanics’ liens, in the manner following:
(1) If he shall have no lawful issue, to his widow.
(2) If he shall leave a widow and issue, to his widow during her widowhood, and upon her marriage or her death to his heirs…2

That language was the language in force when Joseph wrote his will, when he died (around 1897), and for many years thereafter.3

Since Joseph only owned one piece of land — the land where he and his wife lived — this section of the law about homesteads applied. Nearly 30 years earlier, the Supreme Court of Wisconsin had clearly defined the term “homestead” as “the land where is situated the dwelling of the owner and family.”4

So Joseph didn’t need to say what would happen to his land between his death and the death of his wife Mary. The law supplied that: the land went to Mary. All Joseph did by mentioning it at all was change where the land went after Mary died. Instead of going to all of his children, as the law would have provided, he gave it to his two youngest children alone.


SOURCES

  1. Outagamie County, Wisconsin, Will Book 2: 502, Will of Joseph Housoy, 5 Jan 1891; County Registrar’s Office, Appleton; digital images, “Wisconsin, Outagamie County Records, 1825-1980,” FamilySearch (https://familysearch.org : accessed 5 Aug 2013).
  2. Chapter 102, §2271, in Arthur L. Sanborn and John Berryman, Annotated Statutes of Wisconsin: Containing the General Laws in Force October 1, 1889 (Chicago: Callaghan & Co., 1889), 1: 1318.
  3. See e.g. Chapter 102, §2271 in Wisconsin Statutes, 1921 (Madison, Wisconsin: State of Wisconsin, 1921) 2: 1770; digital images, Google Books (http://books.google.com : accessed 5 Aug 2013).
  4. Bunker v. Locke, 15 Wis. 635, 638 (1862).
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6 Responses to The missing term in the will

  1. I’ve seen a number of examples of this, Judy. Dower law can be confusing and really needs some clarification, both for the woman’s ownership and the sale of property by her husband (dower release) and for survival after the husband’s death. I have three questions related to this post.

    1) Were there Dower Laws in all the states and territories of the U.S.? And did they differ from state to state?

    2) Did the widow need to file a Dower Petition with the court in all cases in order to gain the right to continues to use the property until her death? Or only in cases where the husband died intestate?

    3) Were new deeds issued to reflect that the land had passed to her, or were they issued after her death in the name(s) of the heir(s) stated in the man’s will?

    Many thanks,

    George

    • Judy G. Russell says:

      George, the answer to all of your questions is answered by the answer to one of your questions: “did [the laws] differ from state to state?” Yes, and so the answer to the rest, unfortunately, is “it depends.” In very early America or in some territories, the law of dower may have simply been drawn from English common law, which was incorporated into American law in many respects. Just as an example, the NJ Constitution of 1776 expressly incorporated into the laws of the fledgling state all of English common law that wasn’t inconsistent with the provisions of that Constitution. In other jurisdictions, there may have been an express statute setting out dower rights. In general, however, dower rights were only life estates and so they weren’t always reflected in deeds at all. The deeds often reflected only the fee simple or reversionary interest rather than the life estate interest.

      And, of course, the Wisconsin statute at issue here wasn’t a dower interest at all, as such, but rather a separate homestead right that applied to widow, children, even grandchildren.

  2. If I may comment on George’s question, my experience in Virginia has been that a dower “petition” was filed, even when the husband died testate, only if the circumstances demanded it, for example, a guardian other than the surviving widow was appointed for minor children or heirs who then sought control over property that would fall to his/her ward(s). In Virginia, it has also been quite rare for deeds to be issued to reflect the division without either a dower petition or lawsuit being filed demanding a distribution while the widow was still living. I have even seen where, instead of the traditional 1/3 share due the widow, she was granted a wing of the house or the will stipulated that she was to have full access to all “profits” while she lived but that the children would have actual possession.

  3. Aside from issues of dower law…I have read many wills in New England states where the widow is given use of the best room of the house while living, or until such time she marries. Then it (room or house) reverts to the heirs.

    One thing I though interesting was that he gave his son Jake one hundred dollars, and only gave his three daughters five dollars each. Perhaps this was because they had previously been supplied with a dowry(?). But for the land to be divided soly between the other two sons…that leaves me with questions.

    I have read some wills where the head of household states that a particular child already received their inheritance/land, so they weren’t getting as much as the others. I’ve also read where the land was to be equally divided between all the children. This will is interesting in its differences.

    • Judy G. Russell says:

      You have other possible factors at play here as well, Debra: the family was Belgian and may have been acted in accordance with their understanding of Belgian practice or tradition; the will is very late in the 19th century; the older children were considerably older and may have been well-established, compared to the two youngest sons; the mother ended up living with the youngest son until her death, etc., etc. So there’s much we don’t know about this particular situation. As for the best room, yep, that was a common phrase.

  4. Linda Deppner says:

    Ah! There’s that interesting term “reversionary interest.” I have a situation where my ancestor’s son, as administrator of his father’s estate, paid to himself an amount that was “part payment of amount coming to me as an heir at law & by purchase the Same being five tenths interest in the lands Sold on the first Tuesday in Dec’r 1878 & being the reversionary interest in the Dower assigned to Rachael Barfield.” I’ve found no other evidence that proves a connection of my ancestor to the husband of Rachael Barfield (she was a later wife, not the mother), and I’ve been told that this is not sufficient to prove my case.

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